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Friday, 27 May 2016

The recent passing of Prince left many fans in mourning and potential
heirs clamouring for a piece of his estate. The singer, who died intestate,
left behind a wealth of copyright protected works. His right to publicity,
however, did not survive him, as the common law right in Minnesota, where Prince was domiciled, only applies
to the living.

The Minnesota State Legislature hastily
attempted to pass a bill to change this, by creating a post-mortem
right of publicity. On May 9, the Bill, entitled
Personal Rights in Names Can Endure Act, was put
forward, two weeks before the end of the Legislature’s session on May 23. The
bill was subsequently pulled
amid concerns that it was not properly thought out and could
have unintended consequences, but this Kat commends the carefully created name.

The
current law in Minnesota

Minnesota recognises a common law right of publicity and the tort of appropriation of name and likeness. Even though the right of publicity is not
statutory, Minnesota’s common law approach provides extensive protection as it
is not delimited to specific personal attributes. Instead, the right protects
against unauthorised uses of ‘identity’ for commercial purposes. This can extend to the names of
characters portrayed by an individual, as occurred in the case of McFarland v. E & K. Corp., 1991 WL 13728 (D. Minn. 1991) where the
plaintiff successfully claimed for use of his character name ‘Spanky’.

The potential for a broad interpretation of ‘identity’ is best illustrated by the Californian case of White
v. Samsung Electronics Am., Inc., 971 F.2s 1395 (9th Cir. 1992). In this
case, Wheel of Fortune presenter Vanna White claimed that Samsung had infringed
her right of publicity by creating an advertisement featuring a robot, wearing
a dress, standing next to a replica of the ‘Wheel of Fortune’ board. White claimed this was an
unauthorised use of her likeness for a commercial purpose. The 9th
Circuit Court of Appeals dismissed White’s appeal as they opined that the robot
did not constitute likeness within the meaning of the California publicity
statute. However, the found her common law right of publicity infringed as the
advertisement evoked her ‘identity’.

Labour theory

The theoretical justification behind Minnesota’s law is
Lockean labour theory, as the court in McFarland
stated that [2] “A celebrity’s identity, embodied in his name, likeness,
and other personal characteristics, is the “fruit of his labor” and becomes a
type of property entitled to legal protection.” Labour theory is often cited as
a justification for persona protection in US courts, and was advanced by Nimmer in his seminal 1954 article, published the year after the right of publicity was first recognised.
This theory has been criticised by Madow as it does not
take into account that fame does not result solely from the efforts of the
individual. Stylists, publicists and producers crafted Prince into the
superstar that he was. Also, Prince undoubtedly worked hard to achieve his
stardom, but the Minnesota right applies to every individual, regardless of
fame. There is no labour requirement, which means even celebrities who have
rose to the spotlight through luck or connections, benefit from this
protection.

Implications
of a post-mortem right

The Bill proposed a duration of 50 years post-mortem. Since Minnesota’s
common law approach gives a broad interpretation to ‘identity’, Prince’s estate
would be able to require authorisation for any use which evokes Prince. This
broad protection would have chilling effects on posthumous memorabilia and advertising
uses, even where his attributes have not been directly used. In the meantime,
it is likely that the merchandising industry will capitalise on his death.

The Bill has been shelved for now, but may be reconsidered next year.

If the Bill passes into law, it would give new meaning to the lyrics
from Prince’s song, ‘Let’s
go Crazy’:

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